When people build their families with someone who is not their romantic partner, the most important question to answer before conception is whether the person providing sperm is intended to be a donor or a parent. Although both arrangements involve individuals coming together to create a child, the parties’ intended legal and parental roles are fundamentally different. Understanding that distinction and clearly documenting everyone’s intentions before conception is essential to protecting everyone involved, particularly the resulting child.
Sperm Donor vs. Co-Parent Arrangements
In a sperm donor arrangement, the parties generally intend for the donor not to be a legal parent and not to assume the rights and responsibilities of parenthood. Donors and recipients may find one another through a matching program or connect independently. In an independent donation, the donor may be a family member, friend, acquaintance, or someone the recipient meets through an online platform.
In an intentional co-parenting arrangement, the person providing sperm is also intended to be a parent to the child. The parties may intend to share parenting time, decision-making, financial responsibility, or other aspects of raising the child.
The distinction is not always as simple as whether the donor will know or have contact with the child. A known donor may have an ongoing relationship with the child without being intended as a parent. The important question is what role the parties intend the person providing sperm to have and whether their expectations about that role are shared and clearly understood.
Different Documents, Different Purposes
Attorneys typically take great care in drafting both donor agreements and intentional co-parenting agreements because the documents serve different purposes. A donor agreement should clearly reflect the parties’ intention that the donor is not a parent.
An intentional co-parenting agreement, on the other hand, should address the parties’ expectations that they intend to raise the child together and share in decision-making, parenting time, and financial responsibilities.
Specifics as to a custody arrangement cannot be formally agreed upon prior to birth. For example, the idea that one parent will be the primary parent and the other parent will be a secondary parent is not enforceable. If a person is a parent, they are afforded all rights and responsibilities of parenthood and cannot negotiate them away prior to birth. Additionally, custody is always modifiable, and child support is the right of a child and cannot be waived.
The Danger of DIY Agreements
Problems can arise when individuals proceed with at-home insemination using a “DIY” agreement found online or without any written agreement at all. In those circumstances, the distinction between a “donor” and a “co-parent” can become blurred, particularly when the parties have different expectations or their conduct does not clearly align with the relationship they originally intended.
For example, what if a person initially described as a donor but with whom there is no written agreement attends prenatal medical appointments, is present for the birth, contributes financially to the child’s expenses, regularly cares for the child, or begins having overnight visits? Depending on the circumstances, that conduct may later be offered as evidence that the parties intended a parental relationship.
That is why the conversation about “donor or co-parent” should happen before conception, not after the child is born. Will the person providing sperm have a relationship with the child? Will they participate in decisions? Will they provide financial support? Will they have regular parenting time? What will the child call them? The parties should discuss not only the label they intend to use, but what that label means to each of them.
When to Talk with Legal Counsel
For sperm donation, each party should have independent legal counsel, and the donor agreement should be completed before conception. Individuals planning to intentionally co-parent should likewise speak with experienced family law counsel about a co-parenting agreement and what additional steps may be necessary to establish and protect the intended legal parent-child relationships. A mental health professional can be helpful in these conversations because, while real-world relationships can look similar on the outside, whether someone is a parent or donor is bright line – you either have all the rights and responsibilities of parenthood or none of them.
Clarity is Essential
However you choose to build your family, the most important thing is to be intentional about the relationship you are creating. Providing sperm and being a parent are not the same thing. Clearly discussing and documenting everyone’s intentions in a contract before conception can help ensure that the adults enter the arrangement with shared expectations and, most importantly, provide greater clarity and stability for the child.
